It was supposed to be a benign medical board order caused by some minor missteps. Instead, without warning or a chance to argue his case, a Texas subspecialist in an underserved area lost his board certification.
Sound like an anomalous nightmare? It might be — but it also could be that your certifying board has more discretion than you realize to review or even revoke your certification based on the slightest disciplinary action.
If your certification status does become an issue, boards typically have a form of due process. But the physician and his attorney in this case say he essentially didn’t get that from the member board of the American Board of Medical Specialties (ABMS) that had certified him. He came to the Texas Medical Association for help, and TMA pressed ABMS for answers to the cloud of questions that swirled around the physician’s case.
His ordeal serves as a cautionary tale for doctors to know — before they enter into an agreed order with the Texas Medical Board (TMB) — what their specialty board can do next.
“If one of the consequences of going through an agreed order with the Texas Medical Board is going to be that [your specialty board is] going
to take your board certification away, then that’s not good. You’re going to have to fight [the TMB complaint],” said the physician, who, on the advice of his attorney, wishes to remain anonymous. “You’re going to have to fight it tooth and nail, tooth and nail, until you hopefully beat them, or not. There’ll be more expense, more lawyer time, more distance back and forth, because you don’t want to lose your board certification.”
Out of nowhere
Last summer, the physician entered into an agreed order with TMB related to three counts of prescribing beyond an allowed 72-hour period. TMB’s order acknowledged the treatment he provided was therapeutically valid. The order required him to retake the medical jurisprudence exam, complete eight hours of continuing medical education in risk management, and pay a $3,000 administrative penalty.
By the end of the year, he finished those relatively tame requirements, and TMB terminated the agreed order.
“My license was never in any peril,” the physician said. “There were no restrictions on my license. Now that I’m finished with that part of it, there are still no restrictions on my license. I’m prescribing everything that I need to prescribe for my practice.”
But in October, about two months after he entered into the order, he received a letter from his certifying board. The letter said because of the “restriction of your medical license, it appears that you no longer meet the licensure requirements of this Board.” Physicians who didn’t meet those requirements, the letter added, were no longer certified.
The physician figured the letter had been a mistake. But when his attorney, Stacey Simmons of the Austin firm Ballard Simmons & Campbell, contacted his board, the organization told her otherwise.
Ms. Simmons, who specializes in defending physicians in TMB cases, says the board that de-certified her client has its own extremely broad definition of a license “restriction.” The board’s first letter included a long list of those restrictions under its policy, which can include “any licensing board action that results in … condition, obligation, [or] requirement,” among many others.
According to Ms. Simmons, the certifying board later said the terms of the TMB order counted as conditions on his license, invalidating his board certification. By the certification board’s rules, anything other than a dismissal by TMB would have counted as a restriction: “A fine, CME [continuing medical education], anything,” she said.
“That’s not right. That’s not appropriate. It’s not fair. It’s silly,” Ms. Simmons added. “I’ve never seen it apply. I’ve never had a client lose their board certification ever because of an order that we’ve entered into.”
The first letter encouraged the physician to contact the organization’s credentials department if he thought the decision was in error, and said he could provide contradicting documentation within 30 days of receiving the letter. But when Ms. Simmons later wrote to inquire about an actual appeals process, she says she found out there wasn’t one.
“You’ve already lost [your certification]. I guess they would say they give you a chance to correct them or explain it, but you lose it … as soon as that order is signed,” she said. “And interestingly … because you lose it the minute the order is signed, you have lost it for a period of time when you don’t even know you’ve lost it, because you haven’t received their letter yet.”
ABMS told Texas Medicine it doesn’t comment on physician disciplinary actions. The ABMS-member board that certified the physician told Texas Medicine in an email that it can’t comment on individual cases before the board, but that it has “a clear process in place … that allows for a diplomate to regain certification after invalidation.”
The physician involved wants the chance to exercise his appeal rights. But especially now that his certification remains in limbo, he’s not keen on undergoing the hassles of re-upping it, and plans to let it lapse.
“Forget about the expense; I’m a practicing physician, so I can probably pay for it. But just the time involved in doing all that stuff, I can’t do that,” he said of the lengthy requirements to regain his certification. In practice for more than 20 years — in an area where he’s well-known and the only subspecialist of his kind — he figures board certification is not as critical as it once was to bolster his credentials and reputation.
Not all physicians have that luxury.
“When you as a fellow or a resident finish your residency training, there’s really no way of you proving to people out there in the world that you’re good. Nobody knows your quality of work, you’ve just finished your training, [and] you’re out there,” he said. “So I can see how [if] a certifying agency does this test nationally, and not everybody passes it, at least you have this paper that says that you have this level of qualities.
“Certainly, when I finished my residency training, board certification was like the cherry on top of the pie. You wanted to get that paper because at least it would give you a semblance of being adequately trained, adequately knowledgeable.”
TMA steps in
Mindful of the impact cases like this one could have on physicians’ careers, TMA stepped in. The physician involved took his case to TMA’s Patient-Physician Advocacy Committee, which weighs in on regulatory, legal, and legislative matters to ensure high standards of care.
“We could have physicians trapped unknowingly in this,” said Fort Worth rheumatologist R. Larry Marshall, MD, chair of the committee. “That’s my fear, and I think it’s a fear that we [TMA] have. That’s why we want due process for doctors.”
In late March, TMA wrote a letter to the ABMS Ethics and Professionalism Committee to voice concerns that the organization’s professionalism standards don’t sufficiently promote transparency and consistency. The letter detailed the physician’s case, including the maintenance of certification (MOC) requirements he now faced if he wanted to re-certify — burdens TMA has worked hard over the years to alleviate. (See “The New MOC Law: Get the Facts,” below.)
“In the end, for an administrative penalty that was in effect for less than four months, this physician lost his board certification and to regain it, would have to complete one stage of MOC activities and retake and pass the cognitive MOC examination — hurdles that take additional expense and time away from patient care,” TMA wrote.
The letter also noted that the ABMS standard for MOC holds that in some cases, an “action taken against a diplomate’s medical license does not preclude continued board certification.” ABMS member boards are required to have a process in place to consider the circumstances of an action a state medical board takes against someone’s license, TMA noted. It recommended that ABMS work with member boards to more clearly identify license “restrictions” that won’t result in revoking someone’s certification.
“Current ABMS standards may create an expectation that very minor administrative actions on a physician’s license will not have consequences with respect to board certification, but based on above physician’s experience, there is simply no telling what sort of license action would be sufficiently minor to keep board certification intact,” TMA wrote. “Diplomates are thus unable to determine the full consequences of medical board actions — however innocuous they may appear — and this may actually discourage prompt settlement of state medical board investigations.”
TMA received confirmation from ABMS that it had received and distributed the letter to the members of the board’s Ethics and Professionalism Committee. ABMS told Texas Medicine it is “working closely with TMA on this matter to ensure the policies are fairly applied.”
“We’re pushing for a situation to protect doctors, and we want them to consider it,” Dr. Marshall said. “And it sounds like they’re receptive.”
Ms. Simmons says boards’ varying definitions of a restriction are “all unreasonably broad, but they’re slightly different.”
ABMS boards each have their own policies about what actions against a physician can lead to sanctions by the certifying board, or revocation of board certification. Policy for the American Board of Internal Medicine (ABIM), for example, says someone whose license has been restricted may be subject to disciplinary sanctions, “including the suspension or revocation” of board certification. Its restrictions “include but are not limited to conditions … and stipulated agreements.” ABIM policy includes an appeals process.
Ms. Simmons advises that if you receive a complaint from the state medical board, “please get a lawyer.”
If you get to the stage of potentially entering into an agreed order, she adds, talk to your attorney about looking up a specialty board’s rules to see what the implications could be for your certification.
“From [TMA’s] perspective, your doctors, we have to tell them all now there’s a small possibility that if you sign any order at all, you’re going to lose your board certification,” Ms. Simmons warned.
The New MOC Law: Get the Facts
Download a TMA whitepaper on Senate Bill 1148 (Sen. Dawn Buckingham, MD, R-Lakeway), a new Texas law protecting physicians from forced maintenance of certification at www.texmed.org/MOC/.
Tex Med. 2018;114(6):38-40
June 2018 Texas Medicine Contents
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